Sunday, July 31, 2005

What is the Federalist Society?

The NY Times today has an article attempting to answer the question: what is the Federalist Societyand what do its members believe. Since this is a "legally inclined" blog where at least some of the posters are "members" there may be no finer forum than here in which to have this argument. But before the call goes out for a debate, let me posit an easy solution to the question: this blog itself in a way answers the very question. The Federalist Society is about legal interest, legal scholarship and legal debate. On this blog, we are interested in examining, analyzing and yes, at times even critizicing the decisions and current overall state of the legal order. But as many of the posts on this site show, there is no lockstep march toward a pre-determined conclusion. Different positions are often taken: for an excellent example, remember our debate on torture. To the contrary of a closed society, perhaps one of the Federalist Society members' only shared sentiment is that current legal academic institutions do too little to foster the types of debates which are encouraged on this blog and within the Society itself. That belief tends to draw conservatives, libertarians, and a host of others into the Society, but its membership does not define it, its ideal of open debate does.

Friday, July 29, 2005

The Ninth Circuit today reversed the lower court that had denied an injunction to a prisoner who had been coerced into cutting his hair in violation of his religious beliefs. The prison policy was that hair was not allowed to be longer than 3 inches, and contained no exception for inmates with religious reasons for long hair. The prisoner, a Mr. Billy Soza Warsoldier, holds religious beliefs that he can only cut his hair upon the death of a loved one.The District Court had held, ridiciulously, that Warsoldier had not been denied any religious exercise because he had not been physically forced to cut his hair, but had just been denied a tremendous amount of privileges.[1] Obviously, the Ninth Circuit held, this flies in the face of Sherbert v. Verner and the idea that punishment that coerce an adherent to forgo religious exercise is a substantial burden.

The prison rule being a substantial burden, the government had to then prove that it advanced a compelling state interest and was narrowly tailored. The Ninth Circuit didn't buy any of the arguments such as disease control or heightened security from not being able to hide things in the hair. While they in the abstract are sufficiently compelling, the hair length rule was not narrowly tailored.

To be sure, the court noted several times that this is a minimum security prison and distinguished a number of cases that would push them the other way based on this distinction. But the Ninth Circuit would require the prison authorities to have "actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice."

This opinion surprises me because of the sweepingly non-deferential language the Ninth Circuit used. Remember Johnson v. California (we blogged about here and here), and the arguments in Cutter (here). Deference to prison officials goes back and forth. In Johnson (5-4), the majority refused to defer, exacting strict scrutiny, when the issue was racial segregation, while Cutter was, at least it seemed from the arguments, upheld specifically because the problems of religious practices impairing prisons' ability to conduct necessary operations would be remedied by deferring. Today's opinion must be seen as strict scrutiny of the prison rules.

The race issues from Johnson, such as what you do with an inmate who has a religious belief in segregation, are resolved since these are, presumably, compelling state interests. But the health and security concerns are problematic. While I'm a fan of RLUIPA, I'm not sure how to resolve this.

As a consequence of his refusal to cut his hair in violation of his religious beliefs, Warsoldier has been subjected to a series of punishments designed by CDC to coerce him into compliance. He has (1) been confined to his cell; (2) had additional duty hours imposed on him; (3) been reclassified into a workgroup where inmates do not receive time credits or as many privileges as others working in a higher work group; (4) lost his phone call privileges; (5) been expelled from print shop and landscaping classes; (6) been removed from his position as a member of the Executive Body for the Inmate Advisory Council; (7) been prohibited from going to the mainyard for recreation; (8) had his monthly draw at the prison store reduced from $180 to $45; and (9) been prohibited from making special purchases at the prison store.

Thursday, July 28, 2005

Cars, Cows and Federalism

In this post criticizing a New York Times editorial on how a Justice Roberts might roll back commerce clause- based federal regulations, T. More says,

Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?

T. More titles his post "Or, if he says he's against child labor, will you support him?"

However, a personal distaste for child labor hardly is the point; the Times is addressing whether Roberts's judicial philosophy would render the federal government unable to enact legislation to prohibit child labor. I have a personal distaste for hate speech, but my understanding of the 1st Amendment doesn't permit for its prohibition.

As for whether it's utterly absurd that the states could prefer a lower standard for child labor regulation than that promulgated by the feds, even the federal standards have been criticized for being out-of-date and failing to recognize differences between minors and adult males (for example, in permissible exposure to pesticides during agricultural labor). Some states under-enforce federal immigration law in order to have a sufficient supply of labor for the picking season, so I don't find it impossible that they'd lower standards on child labor as well.I suspect what T. More really finds objectionable is the idea that we would return to Industrial Revolution-era conditions, which is indeed ridiculous, but also not the editorial was talking about explicitly (though the authors may have wished to raise fear of it by implication). In the absence of federal regulation, states have the room to experiment, and those experiments can be good or bad.

To assume that a given state wouldn't lower the working age to 13 (Kansas lets girls get married before that age, which horrifies Nebraska) seems to me to ignore the diversity of needs and attitudes in different localities. Most of the kids who took driver's ed with me already had plenty of driving experience on back roads and pastures because that was the norm in East Texas, and the guy who sat in front of me in sophomore English had lost part of one finger to a cow he'd been milking. In contrast, none of my college friends from Northern Virginia got in a driver's seat until they were 15, nor had any of them dealt in animal husbandry.

Considering that part of the rationale for federalism rests on precisely this variation among states, I don't think a federalist honestly can claim that all the states would hew to the federal regulation in its exact letter if the Supreme Court declared it to be invalid. Probably none of them would return to the pre-federal regulation state of affairs, but a large number of federal regulations, being cut to fit the majority of states -- or just the states with the most influential representatives and lobbyists -- are not necessarily ideal for each one of the fifty. If the states might differ from the EPA regarding the environment, or from OSHA in matters relating to adult labor, why must they necessarily adhere to federal standards in the single area of child labor?

Geoffrey Stone on Roberts

Geoffrey Stone of the U. Chicago Law School has a piece in the Chicago Tribune today on the nomination of John Roberts to the Supreme Court. In brief, Stone's argument is that this nomination is a "win" for liberals, not because Roberts isn't a conservative, but because he isn't a Clarence Thomas conservative. Stone's argument is that the left should accept Roberts as a smart, talented judge, one who will approach cases fairly, but will not be "doctrinaire" or "originalist."I applaud Stone's attempt to call off the wolves and see this nomination for what it is: appointing an amazingly talented jurist to the Court. However, I take issue with a few of Stone's assumptions. First, he states that Roberts is "too good a craftsman" to be an "originalist." He labels originalism "vacuous" and "disingenous." We know of course, that Stone would prefer an "evolving" understanding of the provisions of the constitution, that for him, the idol of a judge is William Brennan. But between the two judicial philosophies, which is more disingenous? Which is more vacuous? The vacuousness seems rather obvious: at least originalism is tethered to something, to an attempt to discern the original meaning of the text as passed by our legislture and delegates, and as understood by the people. An evolving constitutional method of interpretation has no such tether, but instead flails about on the wings of public attitude, or more precisely, on the wings of individual judges. And Stone admits, he wants a more compassionate Constitution, one premised on individual dignity and fairness. But from where do these principles emanate? Surely, the Constitution has provisions which serve to ensure fairness, like the due process clause. But I can't conceive of anything more vacuous than a method of interpretation which bases an understanding of due process on some "gut feeling" of fairness, without reference to external guideposts. The only conceivable tether to such a method is one's individual morality, and that seems the most vacuous choice possible as it pertains to a constitutional democracy.

Stone also applauds Roberts' nomination because, since Roberts is no originalist, he thinks he is a pragmatist, and may therefore, learn and evolve (i.e. move left). Stone's vacuousness argument is refuted by himself here. Since Roberts is supposedly "untethered" and "open-minded" we should accept him because he will drift. The vacuous space in Roberts' mind and heart is filled with a sense of fairness and "justice", perhaps learned on the Georgetown cocktail circuit. No. The less vacuous judge, the more tethered judge, the more principled and therefore consistent judge, is the one with an overarching philosophy, a framework to which the facts of particular cases can be applied.

In the end, Stone's editorial reaches the right position: Roberts is qualified, and should be confirmed. However, the subtle digs against a method of constitutional interpretation which attempts to replace "vacuous" methods with something, with anything, is upsetting. To imply that someone is too smart to be an originalist suggests that Justice Thomas, Justice Scalia, Judge Bork, Randy Barnett, and a slew of others are vacuous, unprincipled nitwits. A more "genuine" editorial may have ended with an admission that all too often, constitutional interpretation is guided by pointing to internal guideposts like judges' senses and feelings as opposed to reference to external tethers like history, tradition, and original meaning. If the latter is to be termed "vacuous" by the educational elite, sign me up for nothingness.

Monday, July 25, 2005

Maybe He Can Use the "No, I Was a Token Liberal" Defense

The media seems to be having trouble figuring out whether John Roberts was a member of the Federalist Society. Maybe they should just read the transcripts from Federalist Society events. Here's a quote by Elliot Mincberg of PFAW at a Federalist Society event on 9/9/03:

Anybody who honestly believes that people like Miguel Estrada and John Roberts were selected solely because of merit without any view whatsoever about their points of view, their membership in the Federalist Society, other things, I have a bridge I would love to sell them.

No one else on the panel objected to Mincberg's description of Roberts, including Leonard Leo, the Federalist Society’s executive director.

So is being a Fed Soc member enough to hang one, or does one have to have those "points of view" and "other things" as well? I'm having troubling visions of an improbable future in which I am nominated for some high post, and being queried as to whether I am now or have ever been a member of the Federalist Society. Maybe some of the Hollywood Ten were just Communists for the good events and hot guys.

Supreme Court nominee John G. Roberts Jr. has repeatedly said that he has no memory of belonging to the Federalist Society, but his name appears in the influential, conservative legal organization's 1997-1998 leadership directory.

Judge Roberts' Jurisprudence

The Supreme Court Nomination Blog has the first couple in a series of posts about Judge Roberts' jurisprudence. These first two are fantastic. I'm hoping to come back and discuss the two posts, but here are the links.

Saturday, July 23, 2005

Judge Roberts decision

On Friday, a panel of the DC Circuit issued an opinion in US v. Tarry, a 4th amendment case. Judge Roberts dissented from the panel opinion of Judge Rogers, joined by Harry Edwards. The case presents the question of whether probable cause existed for police officers to search the trunk of Mr. Tarry after they stopped him for a broken backlight, and subsequently determined that the license plates affixed to the car were stolen. The majority found the officers proferred reasons for searching Mr. Tarry's trunk - which led them to find a loaded weapon - was not believable and that probable cause did not exist. As to the merits, it seems far-fetched to believe that no probable cause existed to believe that a search of the trunk would have revealed evidence of a crime. At the very least, the cars actual license plate tags could have been found in the trunk. Furthermore, the police had at least a reasonable basis for thinking the actual car to be stolen, since its plates were fake and altered, and Mr. Tarry had attempted to obscure the plates by breaking the tag light. Under such circumstances, probable cause is established and the trunk may be subject to search.As they always seem to do, 4th Amendment cases invoke a difficult tension between the rights of citizens to be free from unreasonable searches and the deference owed to law enforcement personnel on the ground. Judge Roberts' dissenting opinion is interesting for the deference it pays to law enforcement (in the mold of Rehnquist), and for his understanding of the proper role of the judiciary in such cases. Judge Roberts seems willing to grant broad deference to the officers' on-the-ground judgments and experiences. He places a great deal of emphasis in his opinion on the testimony of one officer who stated that 6-7 out of 10 times he had stopped a car and determined that tags were stolen, the real tags were found in the trunk. This testimony alone is almost enough to Roberts to establish probable cause for a search. And Roberts also seems worried about the panel opinion's suggestions as to what the officers could have done further to investigate and corroborate their suspicions:

Finally, my colleagues’ insistence that police should havefurther questioned Jackson amounts to prescribing preferredinvestigative procedures for law enforcement. We have neitherthe authority nor the expertise for such an enterprise. See UnitedStates v. Montoya de Hernandez, 473 U.S. 531, 542 (1985)(“creative judges engaged in post hoc evaluations of policeconduct can almost always imagine some alternative means bywhich the objectives of the police might have been accomplished”(internal quotation marks omitted)). In the end, I wouldleave the judgment as to what lines of inquiry ought to bepursued to the officer himself, and judge probable cause on thefacts as they are, rather than on what they might have been hadthe officer pursued a different course.

The Tarry opinion thus stands as a good example of the substantive conservatism of Judge Roberts, but, perhaps even more, of the measured and restrained approach to judging. He recognizes the deeply important value of being free from unreasonable searches, but he also is keenly aware of the difficulties law enforcement officers face on the ground. His approach would provide greater deference to these law enforcement personnel, in part because he thinks judges cannot post hoc adequately understand the situation in which the officers found themselves. Furthermore, Judge Roberts also expresses a view that judges are not all-powerful, and are limited in their abilities and understandings. Perhaps this suggests an ultimate unwillingness in some cases to bring the full weight of his opinion to bear (see Roper v. Simmons) when all that stands behind it is his own opinion. As Judge Roberts eloquently puts it: "I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment's place among our most prized freedoms. But sentiments do not decide cases; facts and the law do."

BUT OH, IT'S NOT ABOUT RELIGION!

That's what we will be told by Sen. Schumer, by the New York Times, and others who will pretend that they are studiously neutral, mainstream commentators on American law and politics. But read today's article on Supreme Court Nominee John Roberts's wife. Note that the article claims that Ms. Roberts's activities have drawn interest. Then ask yourself: from whom? Is a single named person in the article interested? Or is not the tone that there is a presumption against a pro-life advocate that must be defended against? The interest here is the interest of the New York Times, and it is one you will notice when you read it.

Then read the rest of the New York Times. Keep a count of how many stories that are not about religion (as this one, ostensibly, is not about religion) focus on the religious faith of the subjects of the story. Report back in the comments. Should be interesting. I have not the patience with the New York Times to complete this research task myself. But I did notice that, in an article that even Sen. Kennedy says (in the article itself) covers material that should be out of bounds, they do choose to emphasize that Mrs. Roberts is a Roman Catholic. So am I. So is Sen. Kennedy. Next?

Friday, July 22, 2005

While I hate to distract from the confirmation hubhub, I thought I'd see what people think about the NYPD's new policy of searching subway riders absent individualized suspicion.

The NYPD has begun searching straphangers' bags without any specific basis for believing them to be terrorists. The policy combines random checks (e.g., every tenth rider) with checks of those who are actually suspicuous (e.g., a bag with protruding wires and an accompanying ticking noise).Naturally, I'm against the policy. It smacks of selling our rights for the illusion of safety. [Insert your favorite Ben Frankin quotation here.] Of course the NYPD defends the policy on the usual grounds: "The public understands we live in changed times," said the Commissioner.

So the age-old question returns. How much liberty are we surrendering, and for what benefit? The liberty interest seems pretty big to me. For many New Yorkers, the subway is the only way to get to and from work. It's the only practical way to visit much of the city. Therefore, anyone who cannot afford regular taxi fare now implicitly has no right to be free of searches of his person and effects.

The benefit is close to zero. Yes, we may deter a would-be subway bomber. But he can always blow up a nearby Starbucks and kill just as many people. It's like "the Club," which does not deter car theft but merely moves it from Clubbed cars to others. (And a murderer can of course blow up the checkpoint itself, like people do in Iraq and Israel, thereby turning a safety device into a death trap.)

The NYCLU has said it will likely sue. I think it should win.

P.S. Another interesting case is the right to travel anonymously on airplanes. See more here about a case in the Northern District of California challenging FAA requirements that air travellers show ID.

Wednesday, July 20, 2005

Changes to Come with Roberts

This report on the Think Progress Blog details well the cases that are likely to swing with Roberts replacing O'Connor. I get giddy just thinking about it.

An additional note which muddles everything is the rapid change of Justice Kennedy's jurisprudence. While Roberts would be the fifth vote in all these cases, Kennedy's fourth vote is never a sure thing, and he could easily flip on Stenberg,Grutter/Gratz, and Hibbs.

Tuesday, July 19, 2005

Breathtaking! (Or, if he says he's against child labor, will you support him?)

No, not the President's selection of DC Circuit Judge John Roberts as his choice to replace Justice O'Connor on the Supreme Court, though it is a thrilling selection. Rather, I find myself short of breath after reading this putatively restrained editorial in tomorrow's NY Times. The restraint here is that the Times does not take a position on Judge Roberts--yet. They want to wait until he fails to give sufficient evidence of being like Justice O'Connor. Or their fantasy of Justice O'Connor. But before we get to the legal absurdities of the piece, let's look at the extraordinarily overheated rhetoric. Here's a choice bit:

If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor.

Now, who was it that let the word out? Was it you Phocion, or you Helvidius, that gave away the secret notes from the Federalist Society meetings where we all dreamt of a future of employing kids to make socks even more cheaply than Chinese prison labor? It's really hard to imagine how even the editors at the New York Times thought that line was appropriate for a "real" newspaper, rather than, say, Mad Magazine. Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?

But wait, there's more! As in the very next two sentences:

There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.

Truly unbelievable. Judge Roberts's dissent was from a denial for en banc rehearing of a case in which he was worried about whether a particular application of the Endangered Species Act was being upheld on grounds inconsistent with the Supreme Court's commerce clause jurisprudence. He in no way raises concerns about the act itself, and indeed suggests merely that better grounds for upholding its Constitutionality might be found if the whole Circuit were to rehear the case:

The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. To be fair, the panel faithfully applied National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). En banc review is appropriate because the approach of the panel in this case and NAHB now conflicts with the opinion of a sister circuit - a fact confirmed by that circuit's quotation from the NAHB dissent. See GDF Realty, 326 F.3d at 636 (quoting NAHB, 130 F.3d at 1067 (Sentelle, J., dissenting)). Such review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent. See Rancho Viejo, LLC v. Norton, 323 F.3d at 1067-68 n.2.

That the Times would so shamelessly distort such a brief dissent from a refusal to rehear en banc tells us all we need to know (not that we didn't already know it) about the sincerity of their "withholding judgment" at this early stage.

Something else to watch out for: the Times, following Sen. Schumer's lead, is calling for thorough questioning of the candidate; no doubt when he gives "evasive" answers both Schumer and the Times will object that the country deserves to have him promise to uphold Roe, and perhaps to confer with Justice O'Connor by phone before writing any future opinion, before he can be supported. But did they oppose Ruth Bader Ginsburg when she ruled out question after question at her hearings? Let us hope that cool heads and clear consciences will prevail over the sort of sleazy politics that is presaged by this editorial--shifting the goalposts on proper inquiry and absurdly claiming that a brief dissent in a denial of a petition for rehearing raises questions about child labor.

Monday, July 18, 2005

Hamdan and the Domestic Enforceability of International Law

Hamdan v. Rumsfeld,decided Friday by the D.C. Circuit, held on three issues. First, the court was not required to abstain from deciding the case; second, that the President had been delegated authority from Congress to create the tribunals and; third that the Geneva Convention on the treatment of Prisoners of War does not create a right of action for Gitmo detainees. The Court also held, in dicta, that Hamdan would not win even if he were granted the convention rights (for posts on this see Marty Lederman and Peggy McGuinness).

The third holding, that relied upon by the District Court, was an extension of Eisentrager, which held that the rights under the convention were not judicially enforceable, were for the political branches to remedy. This, in my mind, is the most interesting, and the issue that we will hopefully hear decided in the next couple terms.The issue is the distinction between the U.S.'s foreign obligations and its domestic law. For the entire history of the Republic the U.S. government has entered treaties that have bound it internationally. We break treaties and are brought before the World Court. But never have these international obligations been successfully used by domestic litigants to force the United States to comply with them. Eisentrager is completely on point.

We have talked a lot about last term's Medellin v. Dretke, which the Court ultimately DIGged. Medellin dealt, in principle, with the same issue. No one contested that the ICJ's decision was an international obligation of the U.S., but rather what that had to do with the case before the Supreme Court. These are two different things: The Convention binds the U.S. internationally, but it does not create rights to be enforced in U.S. courts.

Those arguing that these treaties that were never intended to create enforceable rights seem to completely ignore the structure of our federal system. As if now that the U.S. has entered into all these international obligations, we have ammunition to bring claims for what we consider human rights abuses. This is no different from the creation of substantive due process out of thin air--one takes a document that means A, and without even the pretense of an argument that it was intended to mean B, argues that it should mean B. Makes me want to say "Did you take con law?" (HPM)

On my final paper for my foreign affairs class last semester in which I argued that Medellin should lose his claim, I received a prelimary comment from my (pro-int'l law) professor that "[I] should consult with others on the merits of my federal courts arguments." What? MedellinIS a federal courts argument. The plaintiffs just aren't making it. Go read the oral arguments. Do you think the Justices care about whether it is a good thing for international comity that the United States flaunts the orders of the ICJ? No! Even Justice Kennedy told Medellin's counsel that he "[didn't] have a case."

Those who want Medellin to get deference to the ICJ need to explain how the U.S., which clearly did not delegate authority for the interpretation of U.S. law, should be found to have delegated it, and to require deference to that determination because it's bad to be in violation of a treaty. Also explain how we should give Hamdan a right of action where none was remotely intended and Sandoval completely precludes the finding of one. These, note, are federal courts issues, not international law issues.

The Chief and the New Justice

The Chief Justice will be staying put for the time being, he announced this past week. And the Washington Post is reporting that a decision on Justice O'Connor's replacement is likely to come this week, and not further down the line, as earlier thought. So, how does the Chief's announcement impact the President's choice for SOC's replacement? There could be two distinct ways in which it substantively effects the choice of a nominee.First, without a second post to fill, the President may feel obligated now to nominate a strong conservative, like Michael Luttig, to the vacated post in order to appeal to the more conservative wing of the party and to keep the implied election promises that he made. If the Chief were stepping down, it could be that Bush could appease the right and moderate wings at the same time by appointing someone like Al Gonzales to be the Chief, and Luttig to the other vacancy. With The Post reporting that Gonzales' chances are fading, it appears that the Chief staying may have narrowed the choices which were available and made those choices more conservative. The Chief staying essentially leaves a 4-4 court, and the President might not need see as great a need to rush to have a full court seated. While 4-4 with a weak-kneed Kennedy is not ideal, it is more preferable than a 4-3 liberal split (If the CJ and SOC had left) or even a 4-4 split with the 4 conservatives including both Kennedy and O'Connor.

On the other hand, one could argue that the Chief staying should force Bush to nominate a more moderate judge, such as Gonzales or Edith Clement. This would possibly (though with Chuck Schumer manning the guns, probably not) avoid a bruising struggle and ensure that a full court was hearing cases come October.

I think in the end, the choice by the CJ to remain may not substantively impact the President's decision at all. The first reason is that Bush may have already been set on nominating a woman to replace O'Connor (starting a "female seat", much like the Brandeis seat once was for Jewish justices like Frankfurter and Goldberg - though I think technically Douglas took Brandeis' seat, it was in 1939, the same year Frankfurter came on the Court). The second reason is that the President may have been set on nominating a strong conservative anyway, but one without the "rough" edges that some may think Luttig has. Here, I would place two names, John Roberts first and Michael McConnell next. So in the end, it is quite possible that the Chief's decision has had no real substantive impact, but has only served to hasten the timetable for an announcement. My ultimate prediction is for the President to choose either Edith Jones or John Roberts.

Thursday, July 14, 2005

The Ticking Roe Clock

The absolute best, although entirely improbable, scenario for the Bush administration would be appointing replacements for O'Connor, Rehnquist, and Stevens that will all overturn Roe. Is there a point, and/or have we reached that point, where this is not a good idea?Stare decisis is not mandated by the Constitution. It is, according to Justice Frankfurter, "a principle of policy." Not many people think, however, that precedent should play no role in constitutional adjudication. Robert Bork concedes in The Tempting of America that at some point a previous, incorrect decision may "have become so embeeded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed."

Bork thought in 1990 that it was too late to overrule the decisions validating the New Deal and congressional powers over commerce, taxation, and spending. Overturning those decisions would "overturn most of modern government and plunge us into chaos." Courts should avoid extending the powers of the federal government and may refuse, as the court did in Lopez and Morrison, to continue on its present trajectory. But the past decisions should stand.

Roe, however, in 1990 was still worthy of being overruled.

The question becomes whether it should still, even for originalists, be overruled. Bork thought (I assume he still thinks) that cases like Lochner and Roe never fall into this stare decisis trap. He distinguishes them from the more structural precedents associated with the New Deal based on their lack of "great disruption of institutional arrangements." Since the overall structure would remain in place, and the institutional result would just be a mad dash to the legislature, overruling these decisions comes at no great cost.I wonder, though, whether the 30 year life of a constitutional principle doesn't at least offer some justification for not overruling the decision. Roe has, of course, been hotly contested for its entire life, and there is still a sizable portion of the body politic that wants its head. But at least some right to abortion is fairly ingrained in society. (Note: Lawrence is a completely different story, should be overturned tomorrow)

Consider the extension of the equal protection clause to gender equality. It seems, to me, far too late to overturn every gender discrimination case and retry them on Due Process grounds. It's equally too late to overturn Bolling v. Sharpe and the warping of the Due Process Clause of the Fourteenth Amendment. These seem, to me, indistinguishable from Roe.

What I'm searching for is a neutral principle for the application of stare decisis that overturns Roe but not the gender equality and incorporation cases. I know that T. More has an answer. . . . We're waiting . . .

UPDATE II: By the way, an excellent article I should have initially noted is Henry Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum L. Rev. 723.

He poses the problem well:

"Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates as a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that."

His justification for Stare Decisis:

"[S]tare decisis operates to promote system-wide stability and continuity by ensuring survival of governmental norms that have achieved unsurpassed importance in American society.

Wednesday, July 06, 2005

"Activists" and "Moderates"

. . . so goes the discussion over the upcoming nominee. Professor Balkin's recent post about activism has prompted anotherwave of discussion on this idea that the conservatives on the Court are more activist than the liberals. This has been done and redone, and I don't think anyone questions that it is, in fact, true that the conservatives on the Court strike down more laws than liberals.

But, as T. More's response to Balkin notes, this is an uninteresting point. Labeling someone an "activist" based on the number of statutes they strike down is meaningless, since the raw reversal rates say nothing about the nature of the statutes being struck down. Such a simple across-the-board figure is of little help in determining whether a particular Justice is true to his or her role as assigned by the Constitution. The reversal rates method speaks to some dischord between what the Court and what Congress think is constitutional, but it doesn't tell you which is right. The same Court would be activist with a Democratic Congress, but not with a Republican Congress, but it gives the term no neutral meaning to describe their jurisprudence

We are told to prefer, instead, a "moderate." Hmm. Robert Bork discussed this recently in an interview regarding Justice O'Connor:

BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution. She departed from it frequently. So I wouldn't call that moderate. I would call it unfortunate. But she is -- she is -- as a result, she often determined the outcome by swinging from one side to the other.

KAGAN: OK. Instead of looking back on Judge O'Connor, let's look forward. Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don't want to happen. A lot of people -- a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it's been Justice Kennedy, who has been more moderate than a lot of people think.

BORK: I wish you would stop using the word "moderate." But go ahead.

KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.

BORK: I would call it activist.

Bork is, in my mind, absolutely correct. "Activist" and "Moderate" are the same thing, although I guess a moderate may be somewhat less of an activist. It's probably too late in the game to save the word "activist," but if it is to mean anything (since Balkin, et al.'s method is useless) it must mean what Bork takes it to mean--a judge who departs from what the actual Constitution tells them to do.

UPDATE: It keeps coming. Kim Lane Scheppele on Balkinization compares the amount of invalidation by our courts to courts of other countries and concludes with an explanation of why we think that our courts should do "very little." Again, "activism" doesn't (or at least shouldn't) be determined solely by the quantity of statutes struck down, but by what mechanism they are being invalidated. <

Judicial Activism vs. Judicial Activity

Over at Balkinization, Jack Balkin has posted another analysis of activism that finds the term wanting. I think that this trades on a failure properly to consider the role of the judiciary in our system, as what should be the "least dangerous branch." The judiciary is not meant to have legislative or executive initiative in our government; rather, it is meant to police the boundaries of the enumerated powers of the other branches by faithfully interpreting the laws especially in light of the Constitution which sets numerous internal and external limitations on the powers of the government.

I posted this comment in reply to Balkin:I don't think much turns on the words, so I can agree with your conclusion. But I have always thought that the thing an "activist" judge does is not "something rather than nothing" but deciding cases contrary to the law. To be sure, the most egregious cases come when rights get made up out of nowhere (or out of emanations and penumbras, if you prefer); but it would be just as much activist for a court to refuse to protect individual liberties that have been constitutionally (or legislatively) protected out of a judge's own disagreement with the received law.

It is that arrogating to oneself the power to legislate that constitutes activism. That is why the whole notion of a living constitution is an activist one: well, of course the framers didn't protect reproductive autonomy, but they announced principles that we in our wisdom (because history only moves progressively--we're the most enlightened people ever, ipso facto!) can say today require this or that new right (Roe, Lawrence, etc.).

Thus, the Kelo court's decision was activist, and knowingly so, in relying on "evolving" circumstances that make "public purpose" a better clause than "public use", the one that is actually there. This is a conscious, explicit, "living constitution" kind of activism, and it results in allowing a law to stand. In a government of enumerated and divided powers, it is crucial that judicial humility result in the policing of Congressional and Executive power according to the enacted wishes of the legitimate lawgiver, not the evolutionary editing of judges.

To my mind, Justice Thomas's apparently limitless deference to the executive in matters arising in war constitutes activism (compare his opinion with Justice Scalia's in Hamdi, for instance). Again, that's "passivity" on Thomas's part in that he defers to the executive, but it is an activist pursuit of a take on the war power of the executive warranted by neither the text nor the history of the constitution as he usually applies those terms. {End}

To this I would only add that Balkin, led more by results than by rigorous analysis of the principles, I am afraid, fails to see what Henry Monaghan demonstrated clearly about Bush v. Gore, namely that it does not represent a threat to federalism properly understood, even though it involved a relatively rare review by the U.S. Supreme Court of state court determinations of state law. I would further add that much of the "cleaving" that Justice Thomas would do to existing laws and regulations I would support, as it would undo the activist abetting of unconstitutional lawmaking that prior courts had undertaken. That would be a lot of judicial activity, but it would not be activist. Thus, while Balkin properly notes a number of forms of conservative activity (such as its takings clause jurisprudence), to note such is not always to identify activism properly understood. Are conservatives sometimes activist? Of course. But we should be able to distinguish judicial activism (acting legislatively, for the most part) from judicial activity (carrying out the proper judicial function, which will involve striking down invalid laws). UPDATE: I append also this comment I posted to clarify my reply to Balkin's point about Bush v. Gore (and his idea that Kelo is a betrayal of federalism for the conservatives): The reason for my raising this is that, as in the analysis of activism, where it is a mistake to assume that judicial review simpliciter constitutes activism, so also when it comes to federalism we should not presume there is an absolute deference owed to states by federalists, lest they open themselves to charges of selective application of principle. Both the meaning and application of activism and federalism admit of and require more nuance than that.

Sunday, July 03, 2005

Against Some More Ridiculous Errors...

This fine Sunday morning I awoke in Washington, DC and after the celebration of the sacred mysteries (Catholic Mass for those not in the fold) I set about to watch our nation's most influential folks gab about the nomination process. In a spirit of charity and hope (influenced by the Mass) but also out of a desire to see the truth vindicted (id.), I offer the following reflections in no particular order:(1) Sen. Schumer is playing with fire. He wants to say two things simultaneously: that ideology is grounds for opposition, presumably to the point of filibuster; and that President Clinton nominated Ginsburg and Breyer after consultation with Orin Hatch which is why they sailed through. But Orin Hatch did not hold the first of the two propositions, at least not robustly. The Republicans have had their share of bad behavior on judicial nominations over the years, but when it has come to the Supreme Court they have held their fire. Can anyone seriously claim that Ginsburg does not run afoul of what a "conservative" wants in a judge at least to the degree that Luttig would run afoul of liberal hopes? But, to that point, the Senate still respected that Presidential elections matter, and that, character and competence established, the President's Supreme Court nominees should be affirmed. If the standard is not that a John Roberts, an Edith Jones or even a Janice Rogers Brown cannot qualify, that will not bode well for the future.

(2) Did anyone in the media or elsewhere note that replacing Byron White with Ruth Ginsburg shifted the balance of the Court? Was this inappropriate then? Would it be inappropriate now, therefore, to put up somebody with a different philosophy than Justice O'Connor? This is among the sillier arguments employed by self-styled progressives to pretend that they did not lose the last election.

(3) Did Walter Dellinger, distinguished Professor of Law at Duke and Solicitor General under President Clinton, miss the first year course in Constitutional law? This morning, on the George Stephanopolous program, he opined that he could see no reason why a nominee should be permitted to avoid questions about pending issues before the court. How about several reasons, beginning with the Separation of Powers: how would it not undermine the independence of the judiciary to insist upon particular views about actual cases likely to arise before a person could join the court? Let's also try Judicial ethics: Judges (like Justice Scalia in the Pledge case) must recuse themselves from hearing cases they are thought to have prejudged; the judicial code of ethics has for years required that judges refrain from commenting on matters likely to come before their courts. And all nominees of both parties have under that principle refused to answer such questions. So for Constitutional and ethical reasons, Mr. Dellinger, it would be wise not to abandon this practice.

(4) Sen. Specter did not learn much from his behavior in the episode that made "Bork" a transitive verb. This morning on the same This Week program, he suggested that originalists like Bork could be outed in hearings for their extreme views. As an example, he argued that under the original meaning of the Constitution you would have to segregate the Senate, whites on one side, minorities on the other. Now, that argument is so completely ridiculous I don't even think Ralph Neas would make it--but it comes instead from the Republican Chairman of the Senate Judiciary Committee. It's rather depressing to imagine that such things can be said. It truly is not possible that Specter believes what he said. Why did he say it? He's very hurt and angry that conservatives have not forgiven him for what he did to Bork. This comment by him suggests that conservatives are apparently correct not to have forgiven or forgotten, since he has not repented from the shameful canard that originalists are somehow opposed to civil rights, in favor of racism, and, when they get the chance, like to kick cats.

(5) There is very little hope to imagine that the media will cover this as anything other than just another political appointment, and will discuss only the results that nominees have voted for or would vote for. This is how the Senators will discuss it, this is how the activist groups will pitch it, and there is little hope that the journalists will not follow their lead.

(6) As depressing as all of the foregoing can be, tomorrow is July 4, and as such an occasion to reflect that we are passionate about this because we love the country, the Constitution, the freedoms we enjoy, and system that brought most of ancestors here yearning to breathe free. Happy Independence Day!

Friday, July 01, 2005

Justice O'Connor and the Pragmatist Movement

WeatEx Post have, at times, not been kind to Sandra Day O'Connor. Her jurisprudence, although often if not mostly coming to what many of us think is the "right" conclusion, worked to aggrandize the role of the Court in a way that will be perhaps most clear in the weeks and months to come as political opposites fight to the death over who the next philosopher king will be. What has become known as "judicial pragmatism," a softening of the mandates of the text and history of the Constitution when faced with seemingly unreasonable outcomes, has corrupted the neutrality of the law and brought the country's confidence in the Supreme Court to an all time low.

Instead, her version of pragmatism has been more in the vein of Judge Posner, although without the economics. The two of them produce opinions the result of which people generally find sensible--most people probably agree with her most of the time. What this has to do with interpreting a Constitution is still a mystery to me, but at least she's not out of touch with reality as the "hopeless four" seem to be.

What this may or may not have done is garnered considerable moderate and conservative support for the idea of pragmatism because the outcomes are often or mostly sensible. She is a figurehead for the politically conservative/jurisprudentially liberal demographic--a group whose focus is the views of the judge and the virtue of the outcome rather than reliance on structure and text. This group is playing with fire with names like Gonzalez and McConnell who both have some appealing views but are not necessarily committed to the text and history of the Constitution.

I hope that this influence has not been successful enough for those who have less trust in the structure of the Constitution than they have in 9 lawyers to support a new Justice whose supposed political views or party affiliation they share. I suspect that the Souters and Kennedys have made it clear enough that this is a bad idea.

More than one case at a time now?

I come neither to praise nor to bury Sandra Day O'Connor. She obviously had a remarkable and influential career in the law, including a highly influential period of time on the highest court in the land.

I'm not an expert on her jurisprudence, but I will say that her critics from the right were probably too harsh on her, and her admirers among self-styled "progressives" were probably too kind to her. In the area of state sovereign immunity, federalism, and even, with Kelo as a late datum, property, O'Connor should have been largely pleasing to conservatives. Midkiff, however much one might disagree with her distinguishing of it in Kelo, was obviously for her a kind of one-off predicated upon the unique factor of the extraordinary maldistribution of land in Hawaii.At the same time, her decision in Casey was spectacularly disappointing, and in Stenberg so much the more so. For those of us, who, like me, think foetuses are human beings (gosh, I was once a foetus, and never a salamander, and always a human--however salamanderlike I may have looked at the formation of the primitive streak) this was an extraordinarily non-progressive decision, a setback for human rights, and most importantly totally unwarranted as a matter of the meaning of the Constitution. That stare decisis should have been held decisive in the denial of the right to life (Casey) but not decisive in the denial of a right to homosexual sodomy (Lawrence, though to be fair O'Connor would have held off from overturning Bowers) does not leave me excited about Justice O'Connor's tenure on the court, at least as measured by the central human rights challenge of our times (yes, even bigger than Darfur, which is very, very big).

As a general comment about her jurisprudence, it will come as no surprise to regular readers of this blog that, whenever (and it was often) Justice O'Connor and Justice Scalia disagreed over whether the Court should prefer "rules" (which she always regarded as "rigid") or "careful balancing of case-by-case facts", I sided with the rigid rules of Scalia. The latter approach, generally framed by its defenders (such as Cass Sunstein) as being a sort of modest jurisprudence, was in fact the opposite. By refusing to announce clear rules and dispense with cases on the basis of clear principles, the muddled moderation that characterized much of O'Connor's jurisprudence amounted to an aggrandizement of the Court's authority, and resulted in uncertainty for parties in a variety of cases. For a court that refuses to increase its caseload despite having four times the clerks it once had, it is not very consoling to hear that the decisions made are "case by case" and "carefully balanced on the facts before the court." They are really not there to spend all day with detailed fact patterns. If that is what they want to do, they should take 8,000 cases a year, rather than 82. Given the unlikelihood of that event, better to announce rules, and better also to stay out of certain areas of national life altogether.

Nevertheless, I am grateful for O'Connor's decision in Bush v. Gore, which as Henry Monaghan noted in his article on the matter for the Columbia Law Review was correctly decided and part of a routine line of cases "second guessing" state supreme court determinations of state law, and for her resignation from the Court when there is a chance that a person who respects the text and history of the Constitution might be appointed in her stead.

The fight to come...

Sandra Day O'Connor will retire. Bill Kristol must have had an inside source to get his scoop. Perhaps we should get an independent counsel to investigate who leaked.

Prediction: the confirmation battle over a successor to Justice O'Connor will not be pretty.

I would guess that it also seems more likelynow (though probably still a longshot) that President Bush will decide to appoint Alberto Gonzalez, a moderate, for this vacancy. But even a Gonzalez appointment would not be without its controversies: expect to hear about "torture" memos if this indeed comes to pass. The other possibility is either Edith Jones or Edith Clement. I suspect that Judge Luttig's chances of getting this spot are not as good as his chances would have been of filling the Chief's spot.

"The Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequences would be the substitution of their pleasure for that of the legislative body."